Short Wins – First Monday Edition

Autumn is here. With it comes a crisp feeling in the air, leaves turning, the start of the Supreme Court term on the First Monday in October (for a preview of sorts, please see my guide to bluffing your way through knowledge of the upcoming term), and a slowdown in the pace of published opinions coming from our nation’s federal appellate courts.

Why the slowdown? My suspicion is that as old law clerks leave the service of their appellate judges at the end of August to be replaced by new clerks — much as old leaves fall from trees to make way, eventually, for new buds — the work of the old clerks issues in late August and the work of the new clerks has yet to be rendered in a state fit for publication.

Though perhaps I’m mistaken.

All I know is that I saw the same slowdown last year, and we’re seeing it again.

But with this relaxed pace comes exciting news. Here at The Federal Criminal Appeals Blog, we are happy to announce that each and every published opinion where a criminal defendant wins in a federal circuit court will be published, here, in the weekly “Short Wins” column the week after it comes out.

Our great hope is that this will be a bounty of 28(j) letters for the federal criminal appellate bar.

So, if you are a federal criminal appeals lawyer — representing people who are appealing a federal conviction or sentence — you can come here, each Monday, to see where and how your brothers and sisters in the bar are winning across the country. And, if another win is like a case you have, you can write a letter to your court explaining this supplemental authority.

1. United States v. Spears, Seventh Circuit: Appellant was convicted of five crimes arising out of his operation of an illicit business that produced and sold counterfeit documents. Because the evidence was insufficient to sustain appellant’s conviction for unlawful possession of five or more false identification documents, this conviction was reversed, the sentence vacated, and the case remanded for resentencing.

2. United States v. White, Second Circuit: In possession of a weapon by a convicted felon case, the district court erred in excluding two crucial pieces of evidence: (1) the Government’s decision to initially charge four women traveling with appellant with possession of the gun allegedly found on appellant’s person; and (2) evidence of a prior judicial finding that discredited the testimony of a Government witness. It was error to exclude the first evidence without inquiring into its relevance and probative value. It was error to exclude the second because evidence that might lead a jury to conclude that the witness was willing to lie in a similar case to secure a criminal conviction is both relevant and probative – particularly where, as here, appellant’s defense centered on proving that the same witness and other officers lied about finding a weapon on appellant’s person. Because these errors were not harmless, the judgment of conviction was vacated and the case remanded for a new trial.